1.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MARK JACKSON,

Plaintiff,

v.

ROHM & HAAS COMPANY, et al.,

Defendants.

Civil Action No. 05-4988

OPINION

March 19, 2009 Pollak, J. 

On December 16, 2008, Magistrate Judge M. Faith Angell filed a Report and

Recommendation (Docket No. 230) that concluded that the court should grant the

defendants’ motions to dismiss plaintiff Mark Jackson’s complaint (Docket Nos. 170,

171). Judge Angell recommended dismissal with prejudice as a sanction for, inter alia,

Jackson’s continuing failure to file a properly-pleaded complaint and his chronic

obstinacy regarding the court’s orders and decisions. Jackson has submitted his

objections (Docket No. 234) and defendants have filed responses (Docket Nos. 235, 236). 

Jackson then, with leave of the court, has submitted a reply to the responses (Docket No.

242), and the defendants have, with leave, filed a sur-reply (Docket No. 243). As I will

adopt the factual conclusions and virtually all the legal analysis of the Report and

Case 2:05-cv-04988-LP Document 247 Filed 03/19/09 Page 1 of 5
2.

Recommendation, I will forego an additional recitation of the facts.

I. Analysis

I agree with Judge Angell's careful and thorough assessment of the Consolidated

Amended Complaint in this suit, and I find much in the CAC to warrant application of the

sanction limned by Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863 (3d Cir. 1984). 

Viewed in the light of the history of this litigation and the decisions of this court, the

CAC seems a model of obstructive and contumacious posturing. I do not consider most

of the efforts by Jackson’s counsel to be appropriate advocacy within the rules; instead, I

agree with Judge Angell that they represent recurring obduracy of the kind that warrants

sanction under Poulis. 

Even so, application of the full Poulis sanction to Jackson's consolidated lawsuit

gives me pause. Judge Angell, in balancing the six Poulis factors, acknowledges that it is

conceivable that “some of Plaintiff’s claims may have merit.” R & R at 17. Dismissal

under Poulis is not an ‘all or nothing’ proposition for a civil lawsuit. So long as the

district court conducts a proper balancing of the factors, the “extreme sanction” of Poulis

can be flexibly applied to a variety of circumstances. Anchorage Assocs. v. V.I. Bd. Of

Tax Review, 922 F.2d 168, 177 (3d Cir. 1990). A court can apply the dismissal sanction

to individual claims or defenses. Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1148 (3d Cir.

1990). Further, it is prudent for a court considering a dismissal that would serve as a final

adjudication to resolve doubts in favor of reaching a decision on the merits. Adams v.

Case 2:05-cv-04988-LP Document 247 Filed 03/19/09 Page 2 of 5
 In my Memorandum/Order of Sept. 12, 2007 (Docket No. 125 in 05-cv-4988) at 1

12 - 13, I made clear that these claims — brought under 29 U.S.C. §§ 1132(a)(3), 1105 —

could survive, but only because Jackson sought equitable relief under them. His demands

3.

Trs. of New Jersey Brewery Employees Pension Trust Fund, 29 F.3d 863, 870 (3d Cir.

1994). Accordingly, while I agree with Judge Angell’s balancing of the Poulis factors as

regards the CAC in toto, I have the discretion to levy the Poulis sanction against all or

just some of Jackson’s claims. In cautious exercise of that discretion, and in light of the

conclusion (which Judge Angell and I share) that it is possible that certain of Jackson’s

claims may not be wholly meritless, I will dismiss most of the claims while allowing a

small group to survive. 

The RICO claims (Counts I - XI of the CAC) will be dismissed. The worst

pleading abuses in these consolidated cases all arise from these claims. Counts XX -

XXV of the CAC, which are state law claims, will also be dismissed because, as a group,

they reflect clear disregard for the past directives of this court, and they are substantively

interconnected with the RICO claims and undermined by the same kinds of pleading

flaws. 

The ERISA claims (Counts XII - XV of the CAC) are troublesome for a number of

reasons. In the last round of motions to dismiss before these two cases were consolidated,

some ERISA claims were dismissed and some survived from each of the two suits — but

they appear conflated in the CAC. In addition, Counts XIII and XIV contravene, at least

in part, this court’s earlier orders. Lastly, Jackson recites more than once that ERISA no 1

Case 2:05-cv-04988-LP Document 247 Filed 03/19/09 Page 3 of 5
for damages under the claims were dismissed. Id. In the CAC, Jackson again seeks

monetary damages under these claims, in addition to all other available remedies. In his

objections, Jackson states that he pleaded monetary damages “in the alternative.” I am

not persuaded that this cures the contravention of earlier orders.

 Two such recitals are as follows: 2

... the rights and remedies prescribed by ERISA, which ordinarily are exclusive in

nature, are not applicable and/or not the exclusive rights and remedies available to

plaintiff and others eligible for disability benefits.... Since at least 2002-present, both

Rohm and Haas and Liberty Life have intentionally misrepresented to numerous

employees, plan participants and others, that the Rohm and Haas Company’s

disability plan is a welfare plan within the meaning of ERISA when they know that

the plan is not an ERISA-governed plan ...

CAC ¶ 236, 239.

As set forth at length in the CAC, the 2003 Summary Plans Description (“SPD”)

states that the R&H disability plan is funded from the “general assets” of the

corporation. See CAC at ¶236. Such a practice removes the disability plan from the

coverage of the ERISA statute.

Pl.’s Obj. at 31.

4.

longer applies to this lawsuit, and yet he has pleaded claims under the Act. In light of 2

this, I will dismiss all of plaintiff’s ERISA claims.

The four claims against Rohm & Haas that sound in the ADA and PHRA (Counts

XVI - XIX of the CAC) survive dismissal. They appear to retain some assertable

pertinence even after the excision of allegations and assertions that supported all the

dismissed claims. Moreover, they do not evince the patent pleading deficiencies or the

disregard for the past orders of this court that support Poulis dismissal of most of the

CAC. The PHRA claims (Counts XVII and XIX) will be dismissed, however, as to the

Case 2:05-cv-04988-LP Document 247 Filed 03/19/09 Page 4 of 5
5.

individual defendants named in the CAC because Jackson has not pleaded any factual

scenario that raises such claims above a speculative level for these persons. “While a

complaint ... does not need detailed factual allegations ... a plaintiff’s obligation to

provide the grounds of his entitlement to relief requires more than labels and conclusions,

and a formulaic recitation of the elements of a cause of action will not do ....” Bell

Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (internal citations omitted).

In light of the fact that I will adopt, in greater part, Judge Angell’s Report &

Recommendation and dismiss twenty-one of the plaintiff’s twenty-five claims with

prejudice, Jackson once again will have to file a corrected complaint. He will be required

to limit his efforts to (1) the four claims that have survived this round of motions to

dismiss and (2) the relevant facts that, in good faith compliance with Twombly, 127 S. Ct.

at 1964-65, are, so the pleader contends, supportive of those claims. 

II. Conclusion

For the reasons stated above, I will adopt Magistrate Judge Angell’s Report and

Recommendation in large part. An appropriate order follows.

Case 2:05-cv-04988-LP Document 247 Filed 03/19/09 Page 5 of 5